Mixed Signals? How Ideology and Institutional Motivations Shape OSG Positions

• In Event: Experience Matters: Leveraging Insights from Supreme Court Lawyers and Beyond

Abstract

The Office of the Solicitor General (OSG) occupies a unique place in the US Court System. It is the ultimate repeat-player at the Supreme Court, arguing and winning more cases than any other party. That success rate is variable, however, and recent scholarship has shown that Supreme Court justices are more likely to side with the OSG when the office's position is ideologically aligned with the justice's own predispositions and when the OSG takes a position that is counter to the OSG's ideological predisposition (i.e., the ``outlier signal''). While these findings are compelling, we argue that previous research of the latter fail to fully account for how the institutional role of the OSG shapes what we should consider to be an outlier signal. What is more, most of these theories have only been tested on instances in which the OSG files amicus briefs in civil rights and liberties cases, and thus are not generalizable to the OSG’s entire agenda.


We contend that as head attorney for the United States, there are certain cases in which the OSG will argue for their institutional interests regardless of the ideological position taken by the administration. For example, a pro-defendant case outcome in a criminal justice case is liberal, however the OSG for any president will advocate for the continued prosecution of the defendant because that is the position other attorneys in the Department of Justice have taken. For cases like this and others, the outlier signal may conceal the OSG acting in favor of their institutional interests.

We test if the Supreme Court justices receive all outlier signals sent by the OSG equally, or if they distinguish between outlier signals that do and do not serve the OGS’s institutional goals. By doing this we offer a new approach to signaling theory by examining all cases orally argued before the US Supreme Court from the 2009 to 2018 October terms. We distinguish between those in which the OSG is the petitioner, respondent, or participates as amici since this status alters the type and strength of signal it might send. Given significant ideological changes on the Supreme Court it is important to understand how these changes influence its relationship with other branches of government, and if the Court’s “Tenth Justice” still occupies a position worthy of its title.

Authors

• Kirsten Widner, University of Tennessee, Knoxville

• Elizabeth Lane, North Carolina State University